[Federal Register Volume 68, Number 88 (Wednesday, May 7, 2003)]
[Rules and Regulations]
[Pages 24355-24359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11220]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-092-FOR]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the West Virginia 
surface coal mining regulatory program (the West Virginia program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). The amendment consists of changes to the Code of West 
Virginia (W. Va. Code) as contained in Senate Bill 603. The amendment 
concerns reclamation plan requirements and authorizes the submittal and 
inclusion of master land use plans for postmining land use in permit 
application reclamation plans. The amendments are intended to improve 
the effectiveness of the West Virginia program.

EFFECTIVE DATE: May 7, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158; Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated May 21, 2001 (Administrative Record Number WV-
1217), the West Virginia Department of Environmental Protection (WVDEP) 
sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201

[[Page 24356]]

et seq.). The program amendment consists of changes to the W. Va. Code 
as amended by Senate Bill 603. The amendment concerns reclamation plan 
requirements at W. Va. Code 22-3-10, and authorizes the submittal and 
inclusion of master land use plans for postmining land use in 
reclamation plans. The submittal also contains revisions to provisions 
concerning the Office of Coalfield Community Development at W. Va. Code 
5B-2A. The amendment is intended to improve the effectiveness of the 
West Virginia program.
    We announced receipt of the proposed amendment in the June 20, 
2001, Federal Register (66 FR 33032). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment (Administrative 
Record Number WV-1219). We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on July 
20, 2001. We received comments from two Federal agencies.
    By letter dated August 12, 2002 (Administrative Record Number WV-
1326), the WVDEP sent us additional proposed changes as amended by 
Senate Bill 698. The submittal consists of changes to the W. Va. Code 
at section 5B-2A concerning the Office of Coalfield Community 
Development. The submittal also included an Emergency Rule outlining 
revisions to State regulations at Code of State Regulations (CSR) 145-8 
concerning Community Development Assessment and Real Property Valuation 
Procedures for Office of Coalfield Community Development.
    We announced receipt of the proposed amendment in the November 6, 
2002, Federal Register (67 FR 67576). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment (Administrative 
Record Number WV-1343). We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on 
December 6, 2002. We did not receive any comments.

III. OSM's Findings

    Following are the findings we made pursuant to SMCRA and the 
Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed 
amendments to the West Virginia program. Any revisions that we do not 
specifically discuss below concern nonsubstantive wording or editorial 
changes.

1. W.Va. Code 22-3-10. Reclamation Plan Requirements

    New subsection 22-3-10(b) is added, and existing subsection (b) is 
relettered as (c). New subsection (b) is added to read as follows:

    (b) Any surface mining permit application filed after the 
effective date of this subsection may contain, in addition to the 
requirements of subsection (a) of this section, a master land use 
plan, prepared in accordance with article two-a, chapter five-b of 
this code, as to the post-mining land use. A reclamation plan 
approved but not implemented or pending approval as of the effective 
date of this section may be amended to provide for a revised 
reclamation plan consistent with the provisions of this subsection.

    We note that the State inadvertently omitted language from a 
version of the proposed amendment submitted to us on May 21, 2001. 
Specifically, the phrase ``or pending approval as of the effective date 
of this section'' was not identified in the State's draft statutory 
language. Consequently, we did not include the quoted phrase in our 
proposed rule announcement published in the Federal Register on June 
20, 2001. The language was, however, identified in Engrossed Committee 
Substitute for Senate Bill 603 and included in all materials available 
for public review at OSM's Charleston Field office. The language was 
also included in all materials we provided Federal agencies for review 
and comment. We believe that the omission does not change the basic 
intention of the proposed amendment at W. Va. Code 22-3-10(b) and, 
therefore would not affect the basis of our decision on the proposed 
amendment.
    In addition, and related to the above amendment, the State amended 
the CSR at 145-8 by adding, among other changes, section six concerning 
master land use plans. Subsection CSR 145-8-6.6 provides that an 
operator may include, in a surface mining permit application, a master 
land use plan which addresses postmining land uses in the reclamation 
plan developed pursuant to W. Va. Code 22-3-10. The provision also 
provides that an operator may amend a reclamation plan approved but not 
implemented or a reclamation plan pending approval by including a 
master land use plan.
    Subsection CSR 145-8-6.6.a. further provides that any modification 
in the postmining land use during mining must be made in accordance 
with CSR 38-2-7.3.a. and 3.28. These sections contain the criteria for 
approving alternative postmining land uses and the permit revision 
requirements of the State's approved program. The proposed rule 
clarifies that any modification in the postmining land use must be done 
in accordance with the approved State program, even if change is due to 
the master land use plan.
    Subsection CSR 145-8-6.7 provides that master land use plans must 
be approved by WVDEP as part of the operator's reclamation plan before 
the master land use plan may be implemented. This provision clarifies 
the intended relationship of the reclamation plan required by W. Va. 
Code 22-3-10 and master land use plans, which are authorized by W. Va. 
Code 22-3-10(b) to be included in the reclamation plans of permit 
applications. Specifically, CSR 145-8-6.7 provides that a master land 
use plan must first be approved by WVDEP as part of the operator's 
proposed reclamation plan. We understand this to mean that in order to 
be approved as part of the reclamation plan, the master land use plans 
must be consistent with the reclamation plan requirements at W. Va. 
Code 22-3-10(a). In addition, CSR 145-8-6.6 clarifies that any 
modifications in the postmining land use that may occur during mining 
must be approved in accordance with CSR 38-2-7.3a and 3.28.
    We find that the proposed amendment to W. Va. Code 22-3-10(b) does 
not render the West Virginia program less stringent than SMCRA section 
508 concerning reclamation plan requirements. Our finding is based on 
our understanding that to receive approval by the Secretary of WVDEP as 
part of a permit application's reclamation plan, master land use plans 
must be consistent with the reclamation plan requirements at W. Va. 
Code 22-3-10(a). If, in future reviews, we should determine that the 
State is applying this provision inconsistent with this finding, a 
further amendment may be required.

2. W. Va. Code 5B-2A. Office of Coalfield Community Development

    W. Va. Code 5B-2A has never been approved by OSM and is not 
currently part of the West Virginia program. W. Va. Code 5B-2A-1(g) 
clarifies that the purpose of W. Va. Code 5B-2A is to authorize the 
West Virginia development office to take a more active role in the 
long-term economic development of communities in which surface coal 
mining operations are prevalent. W. Va. Code 5B-2A-4 establishes the 
Office of Coalfield Community Development within the West Virginia 
development office. W. Va. Code 5B-2A-1(g) also authorizes the West 
Virginia development office to establish a formal process to assist 
property owners in the determination of the fair market value where the 
property

[[Page 24357]]

owner and the coal company voluntarily enter into an agreement relating 
to the purchase and sale of the property. W. Va. Code 5B-2A-2 specifies 
that the provisions of W. Va. Code 5B-2A are not applicable to either 
underground coal mining operations (surface operations or the surface 
impacts of underground mining) or operations that qualify for 
assistance under the small operator assistance program (SOAP).
    We understand that the proposed revisions to W. Va. Code 5B-2A do 
not supersede any provisions of the approved program and, therefore, we 
find that the proposed amendments do not need to be approved under the 
Federal regulations at 30 CFR 732.17(b) as a part of the State program. 
If, in future reviews, we should determine that the State is applying 
these provisions inconsistent with this finding, a further amendment 
may be required.
    We note that there are several instances in which cross-references 
to provisions within the approved West Virginia program appear in W. 
Va. Code 5B-2A. Although most of these cross-references appear to not 
affect the implementation or effectiveness of the approved program, it 
appears that others may. For example, W. Va. Code 5B-2A-6(a)(1) 
incorporates by reference the notice of violation (NOV) provisions at 
W. Va. Code 22-3-17. It is not clear whether this cross-reference 
merely incorporates the provisions at W. Va. Code 22-3-17 for the 
purposes of W. Va. Code 5B-2A and does not otherwise affect the 
approved program. However, since this provision was not part of this 
proposed amendment, but rather is part of existing West Virginia law, 
we cannot decide its effect on the West Virginia program as a part of 
this rulemaking. Therefore, at a future date, we will discuss the 
implications of these cross-references with the WVDEP and the Office of 
Coalfield Community Development to determine their effect on the 
approved West Virginia program.

3. CSR 145-8. Community Development Assessment and Real Property 
Valuation Procedures for Office of Coalfield Community Development

    The CSR 145-8 has never been approved by OSM and is not currently 
part of the West Virginia program. We will first decide whether CSR 
145-8 affects the implementation or effectiveness of the West Virginia 
program and, therefore, must be reviewed and approved as a part of the 
West Virginia program.
    The CSR 145-8-1 clarifies the scope of the rules, and provides that 
CSR 145-8 establishes the procedures for the creation of community 
impact statements by operators, and the process to develop coalfield 
community development procedures which include asset development goals 
and infrastructure needs. The CSR 145-8 also establishes the criteria 
for the development of a master land use plan by local and county 
regional development or redevelopment authorities, and the procedure 
for establishing the value of property to assist property owners who 
desire to voluntarily sell their property to an operator.
    Section CSR 145-8-6 concerns master land use plans. Subsection CSR 
145-8-6.6 provides that an operator may include, in a surface mining 
permit application, a master land use plan that addresses postmining 
land uses in the reclamation plan developed pursuant to W. Va. Code 22-
3-10. The provision also provides that an operator may amend a 
reclamation plan approved but not implemented or a reclamation plan 
pending approval by including a master land use plan. Subsection CSR 
145-8-6.7 provides that the master land use plan must be approved by 
the department (WVDEP) as part of the operator's reclamation plan 
before the master land use plan may be implemented. This provision 
helps to clarify the intended relationship of master land use plans 
with the reclamation plan required by W. Va. Code 22-3-10. That is, a 
master land use plan must first be approved by WVDEP as part of the 
operator's proposed reclamation plan, before the master land use plan 
can be implemented. As we discussed above at Finding 1, master land use 
plans must also be consistent with the reclamation plan requirements at 
W. Va. Code 22-3-10(a), otherwise the WVDEP could not approve the 
master land use plan as part of the reclamation plan.
    There are several instances in which citations to provisions within 
the approved West Virginia program appear in these rules. And there are 
several references to aspects of the approved program, such as to 
postmining land use, the intended blasting plan, and surface mining 
operations. However, such citations and references do not affect the 
implementation or effectiveness of the approved program. For example, 
CSR 145-8-2.15 provides for a definition of ``surface mining 
operations'' that applies only to CSR 145-8. Subsection CSR 145-8-2.15 
provides that the definition of surface mining operations does not 
include (at subdivision 2.15.b) coal extraction authorized as an 
incidental part of development of land for commercial, residential, 
industrial or civic use. This provision has no effect on the approved 
program, because it only means that coal extraction authorized as an 
incidental part of development of land for commercial, residential, 
industrial or civic use would not be subject to the requirements of CSR 
145-8. However, these activities would still be subject to the 
requirements of the State's Surface Coal Mining and Reclamation Act at 
W. Va. Code 22-3-1 et seq. and its implementing regulations. To help 
avoid any possible confusion, we note that State rules at CSR 38-2-23 
concerning special authorization for coal extraction as an incidental 
part of development of land for commercial, residential, industrial or 
civic use have not been approved by OSM and are not, therefore, part of 
the approved West Virginia program. See the May 5, 2000, Federal 
Register (65 FR 26130), for information concerning our decision not to 
approve the provisions at CSR 38-2-23.
    Nevertheless, we find that none of the proposed provisions of CSR 
145-8 supersede or affect the implementation or effectiveness of the 
West Virginia program and, therefore, do not need to be approved as a 
part of that program.

IV. Summary and Disposition of Comments

Public Comments

    No public comments were received in response to our requests for 
comments from the public on the proposed amendments.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on July 
3, 2001, and October 4, 2002, we requested comments on the amendments 
from various Federal agencies with an actual or potential interest in 
the West Virginia program (Administrative Record Numbers WV-1221 and 
WV-1337). On May 21, 2001, and October 30, 2002, the U.S. Department of 
Labor, Mine Safety and Health Administration (MSHA), responded and 
stated that the amendments have no impact on MSHA's enforcement 
activities or do not conflict with MSHA's regulations and policies 
(Administrative Record Numbers WV-1229 and WV-1342).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33

[[Page 24358]]

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). 
None of the revisions that West Virginia proposed to make in this 
amendment pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur on the proposed amendment.
    Under 30 CFR 732.17(h)(11)(i), on July 3, 2001, and October 4, 
2002, we requested comments on the amendments from EPA (Administrative 
Record Numbers WV-1221 and WV-1337). The EPA responded by letters dated 
August 20, 2001, and November 1, 2002 (Administrative Record Numbers 
WV-1242 and WV-1341, respectively). The EPA stated that it has some 
concerns about the proposed statutory amendment (Senate Bill 603) and 
provided the following comments. On August 20, 2001, EPA stated that W. 
Va. Code 5B-2A-9(f)(1) allows the coalfield development authorities to 
determine post-mining land use needs. These land use needs, EPA stated, 
are specified as industrial, commercial, agriculture, public facility, 
and recreational uses. EPA stated that it is apparent that certain land 
uses, such as commercial and industrial uses, require level land. This 
may necessitate disposal of excess spoil in valley fills, impacting 
headwater streams, rather than placement in the mined areas. EPA stated 
that a particular concern with the amendment is that there are no 
requirements for specific plans or commitments to develop the post-
mining uses. This could result in leveled mountaintops lying idle 
indefinitely while waiting for an investment in commercial, industrial, 
or public development, EPA stated. In some instances, EPA stated, 
excess spoil which could have been placed on the leveled mined areas, 
may needlessly be placed in valley fills.
    In response, and as we noted above in Finding 2, W. Va. Code 5B-2A 
does not supersede any part of the approved West Virginia program. 
While W. Va. Code 5B-2A-9(f)(1) does authorize the development of 
master land use plans that may identify postmining land use needs that 
include industrial, commercial, agricultural, and public facility uses 
or recreational facility uses, the approved program provisions continue 
to apply. For example, W. Va. Code 22-3-13(c) provides an exception for 
certain mountaintop removal mining operations from the requirements to 
restore approximate original contour (AOC). These provisions would 
continue to apply. W. Va. Code 22-3-13(c)(3) identifies the specific 
postmining land uses that may be approved for mountaintop removal 
mining operations under W. Va. Code 22-3-13(c). The provisions at W. 
Va. Code 22-3-13(c)(3), which specify the demonstrations that must be 
made to qualify for a mountaintop removal mining operations AOC 
exception, also continue to apply. We believe, however, that the 
proposed master land use plans and the data they may contain should be 
very useful to the regulatory authority as it assesses a permit 
application for compliance with the requirements of W. Va. Code 22-3-
13(c).
    Upon reviewing subsequent statutory and regulatory revisions 
pertaining to West Virginia's Office of Coalfield Community 
Development, EPA stated on November 1, 2002, that there were no 
apparent inconsistencies with the Clean Water Act or other statutes and 
regulations under EPA's jurisdiction.

V. OSM's Decision

    Based on the above findings we approve the amendment to W. Va. Code 
22-3-10(b) sent to us by West Virginia. We are not rendering a decision 
on the submitted, amended portions of W. Va. Code 5B-2A and the 
Emergency Rules at CSR 145-8 because they are outside the scope of 
SMCRA and do not, therefore, need our approval.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 948, which codify decisions concerning the West Virginia 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply,

[[Page 24359]]

distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 20, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 948 is amended as 
set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for Part 948 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 948.15 is amended in the table by adding a new entry in 
chronological order by date of publication of final rule to read as 
follows:


948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of
 Original amendment submission    publication of    Citation/description
             dates                  final rule
------------------------------------------------------------------------
 
                              * * * * * * *
May 21, 2001, August 12, 2002.  May 7, 2003......  W. Va. Code 22-3-
                                                    10(b).
------------------------------------------------------------------------

[FR Doc. 03-11220 Filed 5-6-03; 8:45 am]
BILLING CODE 4310-05-P